A senior US justice department official has reversed his position and now says using waterboarding while questioning terrorism suspects is not legal anymore, as he prepares to give evidence before a congressional hearing. Steven Bradbury, acting head of the justice department's office of legal counsel, said laws and other limits enacted since three detainees were subjected to the process have eliminated waterboarding, which makes an interrogation subject feel he is drowning, from what is legally allowed.
In outlawing simulated drowning during interrogation, Bradbury goes a step beyond the CIA director, Michael Hayden, who said current laws cast a doubt on the legality of the method, which some consider torture.
In preparing for his appearance later today before the House judiciary subcommittee on the constitution, civil rights and civil liberties, Bradbury said: "The set of interrogation methods authorised for current use is narrower than before, and it does not today include waterboarding.
"There has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law," he said.
It is the first time the department has expressed such an opinion publicly.
In 2005 Bradbury signed two secret legal memos that authorised the CIA to use head slaps, freezing temperatures and waterboarding when questioning terror detainees. Because of that, Democrats in the Senate have opposed his nomination by president Bush to formally head the legal counsel's office.
Bradbury's testimony comes as majority Democrats in Congress try to clamp down on interrogation methods that can be used on terrorism suspects.
Yesterday, Congress moved to prohibit the CIA from using simulated drowning and other harsh interrogation techniques, despite Bush's threat to veto any measure that limits the agency's interrogation techniques.
The prohibition was contained in a bill authorising intelligence activities for the current year, which the Senate approved in December by 51 votes to 45. It would restrict the CIA to the 19 interrogation techniques outlined in the Army field manual. That manual prohibits waterboarding.
The legislation bars the CIA from using waterboarding, sensory deprivation or other harsh coercive methods to break a prisoner who refuses to answer questions. Those practices were banned by the military in 2006.
Bradbury's comments go a step further than Hayden's last week. In testimony before the House Intelligence Committee, the CIA director acknowledged for the first time publicly that the CIA has used waterboarding against three prisoners.
Hayden said current law and court decisions, including the Detainee Treatment Act of 2005, cast doubt on whether waterboarding would be legal now. Hayden prohibited its use in CIA interrogations in 2006; it has not been used since 2003, he said.
The Detainee Treatment Act of 2005 prohibits cruel, inhuman and degrading treatment for all detainees in US custody, including CIA prisoners.
Waterboarding is still officially in the CIA tool kit but it requires the consent of the attorney general and president on a case-by-case basis.